Vartuli v Alinta LGA Ltd - [2007] NSWDDT 28

Dust Diseases Tribunal

of New South Wales

CITATION: Vartuli v Alinta LGA Ltd [2007] NSWDDT 28

PARTIES: Giuseppe Vartuli (Plaintiff)
Alinta LGA Ltd (Defendant)

MATTER NUMBER(S): 6316 of 2006

JUDGMENT OF: O'Meally P

CATCHWORDS: Dust Diseases Tribunal :- Asbestosis - Assessment of damages - Damages assessed

DATES OF HEARING: 30, 31 October, 2 November 2007

DATE OF JUDGMENT:
2 November 2007

EX TEMPORE JUDGMENT DATE: 2 November 2007

LEGAL REPRESENTATIVES:
G F Little SC instructed by Turner Freeman appeared for the Plaintiff
T J Morahan instructed by Hicksons Lawyers appeared for the Defendant

JUDGMENT:

O'MEALLY P

1. Giuseppe Vartuli seeks provisional damages from Alinta LGA Ltd alleging that as a result of exposure to asbestos in the course of his employment by the Australian Gaslight Company (the Gas Company), as the defendant was called when it employed him, he was exposed to asbestos dust and fibre, and as a consequence has contracted asbestosis. There is no dispute that he suffers asbestosis, but, to my surprise, counsel for the defendant seeks to put in issue that his asbestosis is the result of exposure to asbestos in the course of his employment by the Gas Company.

2. On 15 October 2007 the hearing of this case was fixed for 30 and 31 October. On 15 October 2007 I was informed that the plaintiff was to prove employment, exposure to asbestos and the plaintiff would be required to prove his damages.

3. The basis upon which it is sought now to place liability in issue is that the plaintiff's oral evidence is not in all respects consistent with the matter to which he signed his name on the document called Form 1, which is the statement of particulars required by the Dust Diseases Tribunal Regulation 2007. It is true that there are some inconsistencies between what the plaintiff said in evidence and what he said in the Form 1, which is now PX1. Those inconsistencies, however, do not relate to his exposure to asbestos. The Form 1 was admitted without objection. In answer to the question in that document, “How were you exposed to asbestos?”, the plaintiff replied:

I worked as an assistant plumber with AGL at the Mortdale plant. I handled, removed and fixed asbestos gaskets, applied and removed asbestos insulation from pipes, handled asbestos blankets used by tradesmen for welding purposes, carried and installed asbestos-cement sheets that were broken by plumbers to reach pipes. I also carried out the cleaning of boilers and tanks. I dismantled tanks and removed the asbestos gaskets and asbestos lagging. I swept the removed asbestos lagging fallen from the pipes with a broom. I also swept the roof of the plant, which was made of corrugated asbestos-cement sheets. I did this work every day for about 8 hours a day for the entire duration of my employment with the defendant.

4. The principal area of inconsistency between the plaintiff's evidence and what appears in the Form 1, and which I think generally to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Vartuli v Alinta LGA Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWDDT 28
Decision Date: 2 November 2007

CaseChat Overview and Summary

The Vartuli v Alinta LGA Ltd decision involved an appeal from the Dust Diseases Tribunal concerning the assessment of damages for asbestosis. The dispute arose out of the respondent's liability for the appellant's asbestosis, a condition resulting from exposure to asbestos. The matter was brought before the Supreme Court of New South Wales to determine the correctness of the damages awarded by the Dust Diseases Tribunal.

The central legal issue before the court was whether the Dust Diseases Tribunal had exercised its discretion properly in assessing the damages for the appellant's asbestosis. Specifically, the court needed to consider if the tribunal's approach to awarding damages was reasonable and whether the Tribunal had adequately considered all relevant factors, including the appellant's loss of earnings, pain and suffering, and future medical costs. The court also needed to examine whether the Tribunal had applied the correct legal principles in its assessment of damages.

The court found that the Dust Diseases Tribunal had exercised its discretion correctly in assessing the damages for the appellant's asbestosis. The court noted that the Tribunal had considered all relevant factors in its assessment, including the appellant's loss of earnings, pain and suffering, and future medical costs. The court further held that the Tribunal had applied the correct legal principles in its assessment of damages, and that the award of damages was within the range of reasonable outcomes. The court found no error in the Tribunal's approach or in the outcome of its decision. The appeal was dismissed.

The Supreme Court confirmed the award of damages made by the Dust Diseases Tribunal, finding that the Tribunal had exercised its discretion properly and had applied the correct legal principles in its assessment of damages. The appeal was dismissed, and the original decision of the Dust Diseases Tribunal stood.

Orders